Copyright 2011 by Washington Journal of Environmental Law & Policy

Copyright 2011 by Washington Journal of Environmental Law & Policy CREATING AN ENVIRONMENTAL NO-MAN S LAND: THE TENTH CIRCUIT S DEPARTURE FROM ENVIRONMENTAL AND INDIAN LAW PROTECTING A TRIBAL COMMUNITY S HEALTH AND ENVIRONMENT Claire R. Newman * Abstract: When Congress set aside reservations as permanent homelands for American Indian people, it intended that the reservations remain livable environments. When resource conflicts arise in checkerboard areas outside Indian reservations where land ownership alternates between a tribe, state, the federal government and private, non-indian landowners disputes over regulatory jurisdiction and environmental protection intensify. Two recent Tenth Circuit opinions determining the next generation of uranium mining in the checkerboard area of the Navajo Nation, depart from the intent of environmental laws and fail to uphold federal agencies trust responsibilities to the Tribe. These cases illustrate the legal vulnerabilities tribal communities in checkerboard areas face through the loss of their environmental and public health and the potentially massive cost of remediation. This comment urges the federal government to strike a more equitable balance of authority, risk and cost by retaining environmental regulatory jurisdiction in checkerboard areas and by writing Indian Trust Impact Statements that will help ensure that the federal government fulfills its trust responsibility to tribes. I. INTRODUCTION... 354 II. THE LEGAL AND LOCAL HISTORIES OF HRI III AND MORRIS... 356 A. Hydro Resources, Inc. v. United States Environmental Protection Agency (HRI III): Jurisdiction in Dependent Indian Communities... 359 1. The Genesis of Dependent Indian Communities... 360 2. Courts Evolving Interpretation of Dependent Indian Communities... 362 3. The Landscape of Navajo Nation s Church Rock Chapter... 366 4. The HRI III Decision... 369 5. Critique of the Court s Reasoning... 371 B. Morris v. United States Nuclear Regulatory Commission... 376 1. The History of Uranium Mining and Its Impact on Navajo Country... 377 a. Strip Mining in Navajo Country... 377 b. The Impact of Incomplete Remediation on Public Health and the Environment... 379 352

2011] CREATING AN ENVIRONMENTAL NO-MAN S LAND 353 c. The Navajo Nation s Moratorium on Uranium Mining and Community Remediation Efforts... 381 2. The Morris Decision... 383 a. Morris Procedural Background... 383 b. The Court Approved HRI s License Despite Levels of Radiation Above the Exposure Limit Set by the Atomic Energy Act... 384 c. The Court Approved HRI s License Despite Its Inability to Ensure Groundwater Restoration... 388 III. CHALLENGES FOR CHURCH ROCK AND SIMILARLY SITUATED TRIBES AND TRIBAL COMMUNITIES... 391 A. HRI III and Morris Fail to Uphold the Federal Trust Responsibility to Tribes... 391 B. HRI III Undermines Comprehensive Environmental Regulation... 396 C. HRI III and Morris Increase the Vulnerability of Tribal Communities Living Adjacent to Reservations... 400 1. Clarifying Church Rock s Unique Predicament... 400 2. Implications of the Tenth Circuit s Inequitable Distribution of Authority, Risk and Cost... 402 IV. REMAINING OPPORTUNITIES FOR THE PROTECTION OF ENVIRONMENTAL AND PUBLIC HEALTH IN CHECKERBOARD AREAS... 404 A. Retention of Federal Environmental Regulatory Authority Over Checkerboard Areas... 404 B. Indian Trust Impact Statements... 408 V. CONCLUSION... 410 Today, I am a man who has lost his health, his family and his ancestral way of life because of uranium. 1 * JD Candidate, University of Washington School of Law, 2012. 1. The Health and Environmental Impacts of Uranium Contamination in the Navajo Nation: Hearing Before the H. Comm. Oversight and Gov t Reform, 110th Cong. (2007) [hereinafter Cong. Hearing on Uranium] (statement of Ray Manygoats, Navajo tribal member).

354 WASHINGTON J. OF ENVIRONMENTAL LAW & POLICY [Vol. 1:2 I. INTRODUCTION Natural resource conflicts scar the history of Indian country. 2 The focus of these conflicts has evolved with changing modes of economic growth, from furs, to farmland, to gold, to energy resources. Of existing energy resources in the United States, four percent of onshore oil and gas reserves, thirty percent of Western coal, and forty percent of uranium deposits lie beneath lands in Indian country. 3 For some companies, the mineral wealth they own in Indian country represents the companies intrinsic value to investors, and profits from those minerals depend upon companies uncompromised access to them. 4 The United States government and American Indian tribes, however, value these lands differently. Congress has recognized tribal lands as permanent homelands for American Indians, 5 and courts have recognized Congress intent for these homelands to provide livable environments. 6 American Indians ancestral, spiritual and kinship ties continue to bind them to their land. 7 Thus, maintaining livable environments is 2. Indian country generally refers to areas within which a tribe s laws and customs and federal laws relating to tribes and tribal members govern. For the legal definition of Indian country discussed in this comment, see 18 U.S.C. 1151 (2006). 3. Robert T. Anderson et al., FELIX COHEN S HANDBOOK OF FEDERAL INDIAN LAW 965 (2005). 4. Hydro Resources, Incorporated (HRI), a subsidiary of Texas-based Uranium Resources, Inc. (URI), described its uranium holdings to investors: URI s intrinsic value lies in the 183,000 acres and 101.4 million pounds of in-place mineralized uranium holdings in New Mexico. Company News: Uranium Resources, MINING, PEOPLE AND THE ENVIRONMENT (Aug. 30, 2010) http://www.mpe-magazine.com/ company-news/uranium-resources. See also URANIUM RESOURCES, INC., http://www.uraniumresources.com (last visited Jan. 27, 2011). 5. Courts have recognized tribes water rights as a necessary corollary to the establishment of Indian reservations as permanent homelands for tribes for over a century. See, e.g., Winters v. United States, 207 U.S. 564, 577 (1908) (holding that the Fort Belknap Reservation was reserved as a permanent home and abiding place of the Gros Ventre and Assiniboine tribes and that the tribes rights to the Milk River necessarily continued through the years. ); United States v. Adair, 723 F.2d 1394, 1414 (9th Cir. 1983) (same, citing Winters); In re the Gen. Adjudication of All the Rights to Use Water in the Gila River Sys. and Source (In re Adjudication of Gila River Sys.), 35 P.3d 68, 72 (Ariz. 2001) (same, citing Winters). 6. We agree with the Supreme Court that the essential purpose of Indian reservations is to provide Native American people with a permanent home and abiding place, that is, a livable environment. In re Adjudication of Gila River Sys, 35 P.3d at 72 74 (citing Arizona v. California, 373 U.S. 546, 599 (1963)) (internal citation omitted). 7. Our future is tied to the land. No matter how far we advance as a society, that

2011] CREATING AN ENVIRONMENTAL NO-MAN S LAND 355 essential to American Indians vibrant future. 8 With continued global economic growth dependent on a steady supply of energy resources, resource extraction companies and tribes will be inextricably linked for the foreseeable future. Federal courts will continue to face the challenge of resolving resource conflicts in Indian country. In resolving these conflicts, courts are faced with the questions: What constitutes Indian country? And, which government tribal, state or federal has authority to approve resource development projects there? Courts have dealt with resource conflicts on reservations for many years, 9 but when these conflicts arise in checkerboard areas surrounding reservations areas where land ownership alternates between tribal, state and federal governments jurisdictional uncertainty complicates regulatory authority. 10 Such jurisdictional confusion intensifies resource conflicts and increases antagonism between tribes, states, the federal government and private companies. 11 Two recent Tenth Circuit decisions, Hydro Resources Inc. v. Environmental Protection Agency (HRI III) 12 and Morris v. Nuclear Regulatory Commission (Morris), 13 address uranium single fact persists and in some ways constrains our dreams for the future.... The land, they say, embodies a continuing legacy of natural wealth....true environmental self-determination, however, depends upon the ability of Indian nations to preserve their landbases and engage in economic development according to their own policies and values. Rebecca Tsosie, Tribal Environmental Policy in an Era of Self-Determination: The Role of Ethics, Economics and Traditional Ecological Knowledge, 21 VT. L. REV. 225, 225, 330 (1996). 8. See id. at 286 n.356 (1996) (noting that Indian communities cannot afford a catastrophe such as Love Canal, where the only means of protecting the population from hazardous conditions is removal ). 9. See, e.g., Montana v. United States, 450 U.S. 544 (1981) (denying the Crow Tribe the right to regulate non-indian hunting and fishing on non-indian fee lands on the Crow Reservation). 10. See, e.g., South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998) (denying Yankton Sioux Tribe the right to regulate solid waste landfill site based on the determination that the site was no longer within the exterior boundaries of the reservation and that South Dakota had acquired regulatory jurisdiction over the site). See generally Judith V. Royster, Of Surplus Lands and Landfills: The Case of the Yankton Sioux, 43 S.D. L. REV. 283 (1998) for further discussion of this case. 11. See, e.g., Yankton Sioux Tribe, 522 U.S. at 329. See generally Royster, supra note 10. 12. Hydro Res., Inc. v. United States Envtl. Prot. Agency (HRI III), 608 F.3d 1131 (10th Cir. 2010) (en banc 6-5 decision). 13. Morris v. United States Nuclear Regulatory Comm n (Morris), 598 F.3d 677 (10th Cir. 2010), cert. denied, U.S. Nov. 15 (2010) (Mem).

356 WASHINGTON J. OF ENVIRONMENTAL LAW & POLICY [Vol. 1:2 mining in the checkerboard region adjacent to the Navajo Nation reservation and exemplify a natural resource conflict amplified by jurisdictional confusion. This comment argues that the courts in HRI III and Morris employ a backwardlooking approach to determine tribal jurisdiction, ignore the federal government s trust responsibility to tribes and undermine the text and purpose of environmental statutes. In doing so, the courts write a new, troubling chapter in the Navajo Nation s long history with uranium mining. To ensure that tribal lands offer livable environments for generations to come, consistent with congressional intent, this comment contends that federal agencies must (1) retain regulatory authority to ensure that tribes natural resources and their communities public health are adequately protected, and must (2) write Indian Trust Impact Statements to identify and mitigate potential harm to tribes natural resources. Part II of this comment presents and critiques the Tenth Circuit s approach in HRI III and Morris to jurisdictional disputes, environmental protection under the Safe Drinking Water Act (SDWA) and the National Environmental Policy Act (NEPA) and public health protection under the Atomic Energy Act (AEA). Part III examines the effect these decisions have on a Navajo community, on its environment and on democratic accountability to the tribal community. Part IV recommends first, that the federal government retain environmental regulatory authority over checkerboard areas; and second, that the federal government require agencies to write Indian Trust Impact Statements to clarify when a tribe s trust assets will be affected and how the trust assets will be protected. In these ways, the federal government can avoid or defuse natural resource conflicts in checkerboard areas, fulfill its trust responsibility to tribes and ensure that federal environmental laws protect public health and the environment as Congress intended. II. THE LEGAL AND LOCAL HISTORIES OF HRI III AND MORRIS Both HRI III and Morris involve Hydro Resources Incorporated (HRI), the Navajo Nation and its members, federal agencies and the State of New Mexico. As will be discussed in Part III.C, infra, the cases also raise crucial issues for similarly situated tribes and tribal communities across the country.

2011] CREATING AN ENVIRONMENTAL NO-MAN S LAND 357 HRI is a groundwater development company that mines uranium through the in situ leach (ISL) uranium mining process 14 and is a subsidiary of Texas-based, Uranium Resources, Inc. (URI). 15 HRI owns 183,000 acres of land across seven sites in northwestern New Mexico on the boarder of the Navajo Nation reservation. 16 This area is home to the largest known deposit of uranium in the country and one of the largest deposits of uranium in the world. 17 HRI s seven sites contain 101.4 million pounds of mineralized uranium, of which its site in the Church Rock Chapter of the Navajo Nation holds more uranium than any other site. 18 Specifically, HRI s Church Rock site consists of two adjacent parcels of land in Sections 8 and 17, which are surrounded by lands predominantly owned by tribal members, the tribe itself or the federal government in trust for tribal members. 19 The Navajo Nation occupies the largest reservation in the United States, spanning a 27,000 square mile area from southeastern Utah to northeastern Arizona to northwestern New Mexico. 20 The Navajo Nation is home to more than 14. Id. at 682 (explaining that in situ leach uranium mining is a recently developed uranium extraction method which requires injecting lixiviant, groundwater charged with oxygen and bicarbonate, into a well field and flushing out the uranium ore). According to the U.S. Geological Survey, the use of these in-situ leach mining techniques at uranium mines is considerably more environmentally benign than traditional mining and milling of uranium ore. Nonetheless, the use of leaching fluids to mine uranium contaminates the groundwater aquifer in and around the region from which the uranium is extracted. J.A. DAVIS, G.P. CURTIS, U.S. GEOLOGICAL SURVEY, NUREG/CR 6870, CONSIDERATION OF GEOCHEMICAL ISSUES IN GROUNDWATER RESTORATION AT URANIUM IN-SITU LEACH MINING FACILITIES V (2007), available at http://pbadupws.nrc.gov/docs/ml0706/ml070600405.pdf. See HRI s website for an overview of the company s capabilities, http://www.hydroresources.com/index.html (last visited Aug. 5, 2011). 15. URANIUM RESOURCES INC., 2010 ANNUAL REPORT 5 (2010). 16. See generally URANIUM RESOURCES INC., 2010 ANNUAL REPORT 4, 24 35 (2010), available at http://www.uraniumresources.com/projects/newmexico.html for a detailed description of URI S operations, maps of mining sites, financial status forecast, legal and financial risks and litigation. 17. LETTER TO SHAREHOLDERS, URANIUM RESOURCES INC., 2010 ANNUAL REPORT (2010). 18. URANIUM RESOURCES INC., 2010 ANNUAL REPORT 5 (2010). 19. Hydro Res., Inc. v. United States Envtl. Prot. Agency (HRI III), 608 F.3d 1131, 1136 7 (10th Cir. 2010) (en banc 6-5 decision); Morris v. United States Nuclear Regulatory Comm n (Morris), 598 F.3d 677, 683 (10th Cir. 2010), cert. denied, U.S. Nov. 15 (2010) (Mem). 20. See History, OFFICIAL SITE OF THE NAVAJO NATION, http://www.navajonsn.gov/history.htm (last visited Aug. 7, 2011).

358 WASHINGTON J. OF ENVIRONMENTAL LAW & POLICY [Vol. 1:2 175,228 Navajo people 21 for whom the environment remains a defining element of their identity, life ways, spirituality, economy and future wellbeing. 22 The Church Rock Chapter is located in the eastern portion of the Navajo Nation, which is central to Navajos origins and spirituality. 23 Ninety-eight percent of residents in the Church Rock Chapter are Navajo 24 and eighty-eight percent of the land surrounding HRI s parcel is owned by the Tribe, tribal members or held in trust for the Tribe. 25 For HRI to mine uranium at the Church Rock site, it needed a permit under the SDWA to allow its injection of fluid contaminants in to the groundwater, 26 as well as a source materials license 27 under the AEA to possess, process and transport uranium. 28 As a result of the Tenth Circuit s 21. U.S. CENSUS, 2000, Population Living on Selected Reservations, Trust Lands and Alaska Native Areas, http://www.census.gov/ (search population of Navajo Nation, then follow hyperlink to Population Living on Selected Reservations and Trust Lands) (last visited Aug. 5, 2011). 22. A. The four sacred elements of life, air, light/fire, water and earth/pollen in all their forms must be respected, honored and protected for they sustain life;... D. The Diné have a sacred obligation and duty to respect, preserve and protect all that was provided for we were designated as the steward of these relatives through our use of the sacred gifts of language and thinking; and E. Mother Earth and Father Sky is part of us as the Diné and the Diné is part of Mother Earth and Father Sky;... F. The rights and freedoms of the people to the use of the sacred elements of life as mentioned above and to the use of the land, natural resources, sacred sites and other living beings must be accomplished through the proper protocol of respect and offering and these practices must be protected and preserved for they are the foundation of our spiritual ceremonies and the Diné life way; and G. It is the duty and responsibility of the Diné to protect and preserve the beauty of the natural world for future generations. 1 Navajo Nation Code, Section 205, Nahasdzáán dóó Yádiłhił Bitsąądęę Beenahaz áanii-diné Natural Law (2002) http://www.navajocourts.org/resolutions/cn- 69-02Dine.pdf. See also Rebecca Tsosie, supra note 7, at 268 302 for a discussion of the intersection of the natural, spiritual, cultural and economic realms as they influence tribal environmental policy in several American Indian communities. 23. PETER IVERSON, DINÉ: A HISTORY OF THE NAVAJOS at 10 11, University of New Mexico Press (2002). 24. HRI III, 608 F.3d at 1169 (Ebel, J., dissenting). 25. Id. at 1168, 1180. See discussion of the physical, social and political make-up of the Church Rock Chapter in Part II.A.3 infra. 26. See Application for a [Underground Injection Control] permit; authorization by permit, 40 C.F.R. 144.31 (2006); see also Criteria for establishing permitting priorities, 40 C.F.R. 146.9. 27. Definitions, 42 U.S.C. 2014(z) (2006) ( The term source material means (1) uranium, thorium, or any other material which is determined by the Commission... to be source material; or (2) ores... ). 28. See License requirements for transfers, 42 U.S.C. 2092 (2006); General requirements for issuance of specific licenses, 10 C.F.R. 40.32 (2006).

2011] CREATING AN ENVIRONMENTAL NO-MAN S LAND 359 decisions in HRI III and Morris, HRI overcame two major obstacles obstructing its ability to mine uranium at Church Rock. In HRI III, the court determined that because HRI s land in Section 8 was not within Indian country, the State of New Mexico, not the federal Environmental Protection Agency (EPA), had authority to permit HRI s activities under the SDWA. 29 In Morris, the court upheld the source materials license granted by the Nuclear Regulatory Commission s (NRC) to HRI. 30 To evaluate the HRI III and Morris decisions and the alternative outcomes that were available to the Tenth Circuit, it is critical to understand the history of courts dependent Indian community doctrine, 31 land ownership in the Church Rock Chapter and uranium mining involving the Navajo Nation. Following this history, this section analyzes the Tenth Circuit s decisions and motivations for its decisions in HRI III and Morris. A. Hydro Resources, Inc. v. United States Environmental Protection Agency (HRI III): Jurisdiction in Dependent Indian Communities In HRI III, the court considered which sovereign the Navajo Nation, the State of New Mexico or the EPA had the authority under the SDWA to permit HRI s ISL uranium mining project on Section 8 of the Church Rock Chapter of the Navajo Nation. 32 This question turned on whether HRI s land was within a dependent Indian community and therefore constituted Indian country. If Section 8 was Indian country, the land would fall within federal, and potentially tribal, jurisdiction. 33 The court s answer to this question would determine the future of HRI-URI s future in uranium mining, 34 29. Hydro Res., Inc. v. United States Envtl. Prot. Agency (HRI III), 608 F.3d 1131, 1166 (10th Cir. 2010) (en banc 6-5 decision). 30. Morris v. United States Nuclear Regulatory Comm n (Morris), 598 F.3d 677, 705 (10th Cir. 2010), cert. denied, U.S. Nov. 15 (2010) (Mem). 31. Dependent Indian communities are one category of Indian country as defined by 18 U.S.C 1151(b) and discussed in Part II.A.1 2 infra. 32. HRI III, 608 F.3d at 1134. 33. See Indian Tribes, 40 C.F.R. 145.52, 145.56, 145.58 (2006) (tribes are eligible to apply for primary enforcement of the Underground Injection Control Program within the area of the tribal government s jurisdiction). 34. URI s financial future is precarious. Its 2010 Annual Report warns:

360 WASHINGTON J. OF ENVIRONMENTAL LAW & POLICY [Vol. 1:2 the extent of New Mexico s regulatory authority and the Church Rock community s air and water quality. The evolution of courts interpretations of dependent Indian community was central to the Tenth Circuit s decision that HRI s land was not part of a dependent Indian community. This comment argues that the court s opinion was motivated by an allotment era perspective and a preference for administrative expedience. 1. The Genesis of Dependent Indian Communities Indian country defines the area within which a tribe s laws and customs, and federal laws relating to tribes and tribal members generally govern, as distinct from state law. 35 Indian country is most often defined by 18 U.S.C. 1151, 36 commonly referred to as the Indian country statute. According to that statute, Indian country is recognized in three areas: reservations, 37 dependent Indian communities, 38 and Indian allotments. 39 The dependent Indian communities portion of the [w]e are not producing uranium at this time, nor do we expect to begin production in the near future unless uranium prices recover to sustained profitable levels. As a result, we currently have no sources of operating cash. If we cannot monetize certain existing Company assets, partner with another Company that has cash resources,... or have the ability to access additional sources of private or public capital we may not be able to remain in business... We do not have a committed source of financing for the development of our New Mexico Properties, including the Churchrock Property, which is the property we expect to develop first in New Mexico. URANIUM RESOURCES INC., 2010 ANNUAL REPORT 10 14 (2010). 35. See, e.g., Ex parte Crow Dog, 109 U.S. 556, 571 72 (1883) (federal laws are not applicable to Indian country unless Congress so expressly legislates); Worcester v. Georgia, 31 U.S. 515, 561 (1832) ( The Cherokee nation, then, is a distinct community occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have not force. ). 36. 18 U.S.C. 1151 is found within the criminal code, however, jurisdiction under the statute can also extend to the civil context. See California v. Cabazon Band of Mission Indians, 480 U.S. 202, 208 n.5 (1987). 37. 18 U.S.C. 1151(a) (2006) ( [t]he term Indian country... means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including the rights-ofway running through the reservation ). 38. Id. 1151(b) ( [t]he term Indian country... means (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state ). 39. Id. 1151(c) ( [t]he term Indian country... means (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same ).

2011] CREATING AN ENVIRONMENTAL NO-MAN S LAND 361 statute, 18 U.S.C. 1151(b), at issue in HRI III, codified two Supreme Court cases United States v. Sandoval 40 (recognizing the Santa Clara Pueblo as a dependent Indian community) and United States v. McGowan 41 (recognizing the Reno Indian Colony as a dependent Indian community). In both Sandoval and McGowan, the Court looked to the purpose of the applicable statute to determine whether Congress had intended to recognize a dependent Indian community. In Sandoval, the Court focused on the purpose of a federal liquor law to protect Indian people from non-indians exploitive sales to Indian people, and the federal government s treatment of the Pueblo its provision of agricultural implements, irrigation and education to the people. 42 The Court also found the fact that Pueblo lands were not held in trust by the federal government, but by the people in communal fee simple, did not preclude recognition of the Pueblo as a dependent Indian community. 43 Finally, the Court affirmed Congress authority to determine Indian country status, as opposed to the courts, and patently rejected the notion that any community would be labeled an Indian tribe, but rather, only distinctly Indian communities. 44 In McGowan, the Court introduced a rule to determine dependent Indian country status: whether the land had been validly set apart for the use of the Indians as such, under the superintendence of the government. 45 The majority of the Court s discussion reviews Congress intent to set aside a homeland for displaced Indian people in Nevada and the federal government s similar treatment of the Indian Colony to other reservations. 46 In addition, the Court approached the issue of Indian country status flexibly: [w]e must consider the changes which have taken place in our situation, with a view of determining from time to time what must be regarded as Indian country, 47 and within the context of the federal 40. United States v. Sandoval, 231 U.S. 28 (1913). 41. United States v. McGowan, 302 U.S. 535 (1938). 42. Sandoval, 231 U.S. at 39 42. 43. Id. at 48. 44. Id. at 46. 45. McGowan, 302 U.S. 535, 539. 46. Id. 47. Id. at 537 citing Ex parte Crow Dog, 109 U.S. 556, 561 (1883).

362 WASHINGTON J. OF ENVIRONMENTAL LAW & POLICY [Vol. 1:2 government s long-standing relationship with Indians. 48 2. Courts Evolving Interpretation of Dependent Indian Communities After the enactment of the Indian country statute in 1948, courts recognized a third category of dependent Indian communities (in addition to Pueblos and Indian colonies) those that exist outside the boundaries of a reservation. 49 Dependent Indian communities located outside the exterior boundaries of reservations are the product of allotment era policy from the 1880s to the 1920s. During that time, Congress allotted land to individual Indians on and off reservations in an effort to assimilate Indians into agricultural society. 50 Subsequently, many allotments were transferred lawfully and unlawfully into non-indian ownership, resulting in a total loss of 150 million acres of land to Indian tribes. 51 In addition, Congress restored some of the remaining reservation land that had not been allotted to public domain and sold it to non- Indian homesteaders. 52 In jurisdictional disputes since the allotment era, many courts have diminished Indian reservations original boundaries established by treaties and executive orders. 53 In this way, allotment resulted in checkerboard land ownership on and off reservations where land parcels may be owned by the tribe, by individual Indians, by the federal government in trust for the tribe, or by private, non-indian owners. 54 In cases 48. Id. at 539 ( [w]hen we view the facts of this case in the light of the relationship which has long existed between the government and the Indians-and which continues to date-it is not reasonably possible to draw any distinction between this Indian colony and Indian country. ). 49. Robert T. Anderson et al., supra note 3, at 194. 50. See id. at 77 78. 51. Id. 52. Id. 77 79 (explaining that by 1934, tribes retained only forty-eight million acres, down from 156 million acres in 1881, the end of the treaty making era). See also Douglas Nash & Eric Eberhard, Forward at the Seattle University Symposium, Perspectives on Tribal Land Acquisition, 23 24 (Jun. 3, 2010) (transcript available in the Seattle University School of Law Library) (explaining that prior to the arrival of Europeans, Indian tribes occupied 1.9 billion acres in North America). 53. Compare Solem v. Bartlett, 465 U.S. 463, 472 (1984) (concluding that Congress did not intend to diminish the reservation), with South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 358 (1998) (concluding that Congress intended to diminish the reservation). 54. Hydro Res., Inc. v. United States Envtl. Prot. Agency (HRI III), 608 F.3d 1131,

2011] CREATING AN ENVIRONMENTAL NO-MAN S LAND 363 involving disputes in such checkerboard areas adjacent to reservations, courts must often determine dependent Indian community status. 55 As a result, dependent Indian communities are recognized on an ad hoc basis without an official method to quickly confirm their status. In addition, because federal agencies are most familiar with tribal authority on reservations, 56 they sometimes view dependent Indian communities as anomalous and problematic. 57 As illustrated below, the absence of a modern dependent Indian community statute leaves communities in checkerboard areas adjacent to reservations subject to the shifting winds of federal common law. Over twenty years after the passage of the Indian country statute, United States v. Martine was the first case to construe 18 U.S.C. 1151(b). 58 In that case, the Tenth Circuit construed Sandoval s federal treatment of the Indian community factor as requiring the court s inquiry into the nature of the area in question, the relationship of the inhabitants of the area to Indian Tribes and to the federal government, and the established practice of government agencies toward the area. 59 As in Sandoval, the Martine court also assuaged any fear that dependent Indian community status would be recognized arbitrarily. 60 In Pittsburgh & Midway Coal Mining Company v. Watchman, 61 the court formalized Martine s additional, community-specific factors into a two-step analysis to 1136 (10th Cir. 2010) (en banc 6-5 decision). 55. See, e.g., Pittsburgh & Midway Coal Mining Co. v. Watchman, 52 F.3d 1531, 1542 46 (10th Cir. 1995) (outlining a multi-factor dependent Indian community analysis) (overruled in Hydro Res., Inc. v. United States Envtl. Prot. Agency (HRI III), 608 F.3d 1131 (10th Cir. 2010) (en banc 6-5 decision)); United States v. Martine, 442 F.2d 1022, 1023 (10th Cir. 1971) (checkerboard area outside Navajo Reservation is a dependent Indian community). 56. See generally HRI III, 608 F.3d 1131; see also Montana v. Blackfeet Tribe of Indians, 471 U.S. 759 (1985). 57. See generally HRI III, 608 F.3d 1131. 58. Martine, 442 F.2d at 1023. 59. Id. at 1023. 60. Id. at 1024 ( Appellant urges that such a holding implies that wherever a group of Indians is found, e.g., in Los Angeles, there is a dependent Indian community... The mere presence of a group of Indians in a particular area would undoubtedly not suffice. ). 61. Pittsburgh & Midway Coal Mining Co. v. Watchman, 52 F.3d 1531, 1542 46 (10th Cir. 1995).

364 WASHINGTON J. OF ENVIRONMENTAL LAW & POLICY [Vol. 1:2 determine dependent Indian community status. Though the Watchman analysis was partially rejected in Alaska v. Native Village of Venetie Tribal Government, 62 lower courts continued to distinguish Venetie and applied parts of the Watchman analysis. 63 This trend indicated courts understanding of the importance of community-specific factors to a proper determination of dependent Indian community status, 64 the presumption in favor of the continued existence of Indian country 65 and the requirement that congressional intent to terminate Indian country status must be clearly expressed. 66 In Watchman, the Tenth Circuit considered whether the Navajo Nation could impose a levy on source gains from Pittsburgh & Midway Coal Mining Company s (P&M) coal mines located adjacent to the reservation. 67 The lands at issue in Watchman are typical of checkerboard areas. P&M shared its ownership interest in the surface estate with the Tribe, Tribal allottees, the State of New Mexico and the federal government. P&M shared its coal estate with the federal government, the State of New Mexico and the Cerillos Land 62. See Alaska v. Native Village of Venetie Tribal Gov t (Venetie), 522 U.S. 520 (1998) (overruling Watchman s multi-factor analysis and replacing it with a two-step bright-line rule). 63. Despite Venetie s partial dismissal of the Watchman test, some courts distinguished Venetie and continued to apply Watchman s community of reference test. See United States v. Arrieta, 436 F.3d 1246, 1250 52 (10th Cir. 2006) (applying Watchman s community of reference test to an entire Pueblo (not only the road in question) before applying Venetie s two-pronged rule); Garcia v. Gutierrez, 217 P.3d 591, 599 600 (N.M. 2009) (holding that the fee land in question is Indian country for the purpose of the Uniform Child-Custody Jurisdiction and Enforcement Act because 1151(b) does not determine civil jurisdiction, and therefore, Venetie does not apply); State v. Romero, 142 P.3d 887, 891 93 (N.M. 2006) (applying Watchman s community of reference test and holding that non-indian fee land within the exterior boundaries of a Pueblo is part of a dependent Indian community); but see State v. Frank, 52 P.3d 404, 407 10 (N.M. 2002) (adopting Venetie); Thompson v. Franklin, 127 F. Supp.2d 145, 156 159 (N.D.N.Y. 2000) (adopting Venetie). 64. But see Hydro Res., Inc. v. United States Envtl. Prot. Agency (HRI III), 608 F.3d 1131, 1156 (10th Cir. 2010) (en banc 6-5 decision) (noting that [n]othing in Sandoval or McGowan suggests that the metes and bounds of dependent Indian communities should be determined by a court s perceptions about local social, political or geographic affinities). 65. Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 594 (1977); Lone Wolf v. Hitchcock, 187 U.S. 553, 556 68 (1903). 66. South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343 (1998). 67. See, e.g., Pittsburgh & Midway Coal Mining Co. v. Watchman, 52 F.3d 1531, 1534 (10th Cir. 1995).

2011] CREATING AN ENVIRONMENTAL NO-MAN S LAND 365 Company. 68 Watchman largely concretized the dependent Indian community tests courts had used for the past twenty years. 69 The first part of the Watchman two-step analysis requires courts to locate the relevant community of reference. 70 The Watchman court rejected the district court s narrow definition of the community of reference as the mine site (excluding the surrounding area) noting, the existence of a dependent Indian community does not depend on the relative size of the geographical area. 71 Building upon Martine s precedent, the second step of the Watchman test considers: 72 (1) whether the United States retained title to the lands; (2) the relationship of the residents to the Tribe and the federal government; (3) whether the area demonstrates cohesiveness; and (4) whether the lands have been set apart for the use, occupancy and protection of the dependent Indian peoples. 73 In Venetie, 74 the United States Supreme Court partially replaced Watchman s analysis of a community s social, physical and legal contours with a bright-line rule. Under Venetie s twostep test, a dependent Indian community s land must (1) have been set aside by the federal government for the benefit of Indians, and (2) the federal government must provide sufficient superintendence over the land. 75 In Venetie, because the Alaska Native Claims Settlement Act extinguished tribes aboriginal title and enabled non-indians to own former 68. Id. at 1534 36. 69. See, e.g., United States v. Driver, 755 F. Supp. 885 (D.S.D. 1991) (holding that a dependent Indian community exists where homes were built with federal funds and preferences for leasing were given to tribal members satisfied the federal set aside requirement and the provision of tribal services in the housing community satisfied the cohesiveness requirement); Mound v. Spotted Horse, 477 F. Supp. 156, 160 (D.S.D. 1979) (applying a four-factor analysis similar to Watchman); United States v. Martine, 442 F.2d 1022, 1023 (1971) (examining the area in question, the relationship between the tribal community, the tribe and the federal government, and federal agencies treatment of the community). 70. Watchman, 52 F.3d at 1542 43. 71. Id. at 1543. 72. Id. at 1546. 73. Id. at 1545. 74. Alaska v. Native Village of Venetie Tribal Gov t (Venetie), 522 U.S. 520 (1998). 75. Venetie, 522 U.S. at 530 31. Cf. FELIX S. COHEN, HANDBOOK OF FEDERAL INDIAN LAW 7 (1942) (defining dependent Indian communities as any lands occupied by distinctly Indian communities recognized and treated by the Government as dependent communities entitled to protection ).

366 WASHINGTON J. OF ENVIRONMENTAL LAW & POLICY [Vol. 1:2 reservation land, the Village of Venetie failed to meet the federal set-aside requirement. 76 In addition, the Court decided that the federal government s provision of health, social, welfare and economic programs, did not amount to federal superintendence a tribal-federal relationship the Alaska Native Claims Settlement Act specifically sought to avoid. 77 Lower courts partially distinguished Venetie on two grounds. First, Venetie s analysis turned on the distinct purpose of the Alaska Native Claims Settlement Act to extinguish tribes aboriginal title and did not intend to address Indian country status in areas outside of Alaska, such as New Mexico s Pueblos. 78 Second, Venetie did not expressly discuss or overrule Watchman s community of reference test. 79 As a result, Venetie did not end debate regarding the land in question from which to begin the dependent Indian community analysis. 80 For instance, in United States v. Arrieta 81 and State v. Romero, 82 the courts looked to the larger Pueblo as the relevant land in question, and held that a county road and privately-owned fee land, respectively, were part of dependent Indian communities due to their location within or between Pueblos. 83 Despite the Supreme Court s best efforts, dependent Indian communities defy simple designation. 3. The Landscape of Navajo Nation s Church Rock Chapter Federal land policy left an indelible mark on land status in the Church Rock Chapter. During the late nineteenth century, the federal government granted railroad companies 76. Venetie, 522 U.S. at 533. 77. Id. at 533 34. 78. See Romero, 142 P.3d at 891 (N.M. 2006); Garcia v. Gutierrez, 217 P.3d 591, 599 600 (N.M. 2009). 79. See United States v. Arrieta, 436 F.3d 1246, 1249 51 (10th Cir. 2006) (state highway right-of-way within the exterior boundaries of a Pueblo, surrounded on both sides by non-indian fee land, falls within a dependent Indian community); Romero, 142 P.3d at 891 95 (non-indian owned fee lands within a Pueblo fall within a dependent Indian community). 80. Hydro Res. Inc. v. United States Envtl. Prot. Agency (HRI I), 198 F.3d 1224, 1249 (10th 2000) (rev d on other grounds, HRI III, 608 F.3d 1331 (2010) (en banc 6-5 decision)). 81. Arrieta, 436 F.3d at 1250 51. 82. Romero, 142 P.3d at 887. 83. Arrieta, 436 F.3d at 1249 51; Romero, 142 P.3d at 891 95.

2011] CREATING AN ENVIRONMENTAL NO-MAN S LAND 367 alternating parcels of land adjacent to the reservation. 84 When it became clear that private, non-indian landowners were appropriating scarce water resources, the government changed course and added land to the reservation, while preserving existing non-indian property rights. 85 In 1911, the government changed course again, opening unallotted lands for sale to the public. 86 In 1928, Congress reversed course once again, purchasing former railroad tracts to be held in trust for the benefit of the Navajo. 87 In this way, the federal government s land policies caused extreme checkerboarding in the Church Rock Chapter and created the jurisdictional quagmire the HRI III court sought to reconcile. Of the Church Rock Chapter s 57,000 acres, the federal government holds fifty-two percent in trust for the Navajo Nation and twenty-six percent in trust for individual Indians. 88 The Bureau of Land Management (BLM) owns ten percent of the land, subject to grazing permits granted to Navajos. 89 Thus, the federal government owns a total of eighty-eight percent of the land used or occupied by Navajos. 90 Of the remaining land, private landowners own six percent and the State of New Mexico owns four percent. 91 The Chapter is divided into sections, of which HRI owns one parcel in Section 8 in fee and owns subsurface rights to the adjacent parcel in Section 17 (the locus of the dispute in Morris). 92 Together, HRI s two parcels contain 7.8 tons of uranium nearly a quarter of its total uranium holdings in New Mexico. 93 HRI s 160 acre parcel is located in the southeast quadrant of Section 8, adjacent to the southern and eastern 84. HRI III, 608 F.3d at 1136. 85. Id. 86. Id. 87. Id. 88. Id. 89. Id. 90. Id. at 1168, 1180 (Ebel, J., dissenting) (noting that land ownership estimates are precise within 2.4 percent). The HRI II court estimated federal ownership to be ninetytwo percent of land in the Chapter. Hydro Res., Inc. v. United States Envtl. Prot. Agency, 562 F.3d 1249, 1267 (10th Cir. 2009). 91. Id. at 1168 (Ebel, J., dissenting). 92. Id. at 1157; Morris v. United States Nuclear Regulatory Comm n, 598 F.3d 677, 705 (10th Cir. 2010). 93. URANIUM RESOURCES, INC., http://www.uraniumresources.com (last visited Jan. 27, 2011).

368 WASHINGTON J. OF ENVIRONMENTAL LAW & POLICY [Vol. 1:2 boundaries of Navajo Nation s reservation. 94 The neighboring three quadrants in Section 8 are held in trust for Navajo whose grazing permits there span multiple contiguous sections. 95 Section 8 also sits above the Westwater Canyon Aquifer, which provides potable water to approximately 12,000 people living in the eastern half of the reservation. 96 The aquifer meets primary Safe Drinking Water Act SDWA standards. 97 The Navajo Nation and the federal government dominate economic, political and cultural life of the Church Rock Chapter. In 1927, the Bureau of Indian Affairs divided the Navajo tribal government into Chapters, which were later certified by the Tribe and approved by the Department of the Interior (DOI). 98 The Chapter House, built by local Navajo in 1946, is the social and political center of the Chapter and offers a Head Start program, an elementary school, churches, and other social and health facilities. 99 Of the Chapter s 2,802 residents, ninety-eight percent are Navajo, and eighty-eight percent of residents frequent the Chapter House at least once a month. 100 The Navajo Nation provides housing, electricity, drinking water, wastewater treatment, sewer services and utilities, as well as police protection to the residents of the Chapter, and the Chapter itself provides scholarships, home repair and 94. HRI III, 608 F.3d at 1136 39 (Ebel, J., dissenting). 95. Id. at 1168 69 (Ebel, J., dissenting) (noting Section 8 s integration with surrounding land sections). 96. Rebecca Tsosie, Climate Change, Sustainability and Globalization: Charting the Future of Indigenous Environmental Self-Determination, 4 ENVT L & ENERGY L. & POL Y J. 188, 224 (2009); Southwest Research and Information Center, Facts and History About: HRI s Crownpoint Uranium Solution Mining Project, http://www.sric.org/uranium/cupstat.html (last visited Feb. 3, 2011). 97. HRI III, 608 F.3d at 1161, 1179 (Ebel, J., dissenting) (noting that Westwater Canyon water is outstanding ); Petitioners Revised Opening Brief at 10 Morris v. United States Nuclear Regulatory Comm n, 598 F.3d 677 (2010) (No. 07-9505) 2007 WL 4732316 at 16 (noting that according to the final environmental impact statement, water from the Westwater Canyon Aquifer meets New Mexico s drinking water standards). 98. HRI III, 608 F.3d at 1137; EPA s Supplemental Brief for the En Banc Court at 28 n. 18 Hydro Res., Inc. v. United States Envtl. Prot. Agency (HRI III), 608 F.3d 1131 (2010) (No. 07-9506), 2009 WL 3375299. 99. HRI III, 608 F.3d at 1169 (Ebel, J., dissenting). 100. Id.

2011] CREATING AN ENVIRONMENTAL NO-MAN S LAND 369 purchase assistance, and meals for seniors. 101 The federal government provides road maintenance, grazing management and social and health services. 102 Finally, the local Superintendent of the Bureau of Indian Affairs asserted that the Navajo people living in the Chapter rely primarily upon federal and tribal services. 103 McKinley County, in which the Church Rock Chapter is located, provides essential public services to [the] private lands, which comprise six percent of Church Rock Chapter; HRI pays annual property taxes on its land to the County. 104 4. The HRI III Decision The jurisdictional dispute over HRI s land began in 1988 when HRI applied to the State of New Mexico for a permit to begin uranium mining. 105 HRI assumed that because its proposed operation was on private land, it should seek a SDWA permit from the State of New Mexico 106 under the State s Underground Injection Control (UIC) program. 107 Because HRI s land was surrounded by trust lands, however, the EPA argued that the site fell within a dependent Indian communit[y]. 108 Prior to HRI III, the Tenth Circuit held in HRI II, that Section 8 was part of a dependent Indian community. 109 HRI petitioned for en banc review, contending that Venetie had eliminated Watchman s community of reference test employed in HRI II. 110 In HRI III, the court considered the validity of the EPA s Land Status Determination, in which the EPA affirmed Section 8 s status as a dependent Indian community. 111 Reversing its decision from the previous year in HRI II, the en banc court vacated the 101. Id. 102. Id. 103. Id. 104. Id. at 1137. 105. Morris v. United States Nuclear Regulatory Comm n (Morris), 598 F.3d 677, 681 682 (10th Cir. 2010). 106. HRI III, 608 F.3d at 1169 (Ebel, J., dissenting). 107. Id. at 1139 40. 108. Id. at 1142 44. 109. Hydro Res., Inc. v. United States Envtl. Prot. Agency (HRI II), 562 F.3d 1249, 1267 (10th Cir. 2009). 110. HRI III, 608 F.3d at 1135. 111. Id. at 1142 43.

370 WASHINGTON J. OF ENVIRONMENTAL LAW & POLICY [Vol. 1:2 EPA s Land Status Determination and held that Section 8 did not meet the requirements of a dependent Indian community after all. 112 By holding that Venetie had eliminated the community of reference test, the HRI III court narrowed the scope of its dependent Indian community analysis and decided that the appropriate land in question was HRI s land parcel, in isolation from the rest of Section 8 and the Chapter. 113 Although the Venetie Court did not address the community of reference issue or the status of non-indian fee land in dependent Indian communities, 114 the HRI III court determined that the community of reference test had been eliminated and that HRI s parcel was the appropriate land in question. 115 The HRI III court then examined HRI s parcel in terms of Venetie s federal set-aside and federal superintendence tests. Because HRI s land was held in fee-simple, the court decided the land was not set-aside for Indians. 116 The court s interpretation of the set-aside requirement depends solely on land title, despite Supreme Court precedent stating that the status of dependent Indian communities should be analyzed in the light most favorable to its Indian inhabitants, 117 and that Congress has defined Indian country broadly. 118 When the court isolates its analysis to HRI s parcel, only HRI s taxes to McKinley County and the County s maintenance of a road to Section 8 is relevant, while federal superintendence of eighty- 112. Id. at 1166. 113. Id. at 1149. 114. Hydro Res., Inc. v. United States Envtl. Prot. Agency (HRI I), 198 F.3d 1224, 1241 (10th Cir. 2000) (rev d on other grounds, HRI III, 608 F.3d 1331 (2010) (en banc 6-5 decision)). 115. HRI III, 608 F.3d at 1152 53. 116. Id. at 1148 49. 117. In McGowan, one of two cases on which 18 U.S.C. 1151(b) is premised, the Court stated, [w]hen we view the facts of this case in the light of the relationship which has long existed between the government and the Indians-and which continues to date it is not reasonably possible to draw any distinction between this Indian colony and Indian country. United States v. McGowan, 302 U.S. 535, 539 (1938). 118. Oklahoma Tax Comm n. v. Sac & Fox Nation, 508 U.S. 114, 125 (1993). See also Justice Blackmun s opinion in Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation, 492 U.S. 408, 457 (1989) (3-2-3 opinion) ( [O]nce the tribe s valid regulatory interest is established, the nature of land ownership does not diminish the tribe s inherent power to regulate in the area. ).

2011] CREATING AN ENVIRONMENTAL NO-MAN S LAND 371 eight percent of the surrounding land becomes insignificant. 119 In dissent, Judge Ebel joined by four other judges stated, it is difficult to imagine a situation in which a piece of property owned in fee by a private individual, examined in isolation from the community in which the parcel of land is located could meet these two criteria. 120 By adopting Venetie, the court significantly altered its reading of prior dependent Indian community doctrine. 5. Critique of the Court s Reasoning The Tenth Circuit s decision that HRI s parcel in Section 8 is not part of a dependent Indian community is erroneous for three reasons: (1) the court misinterpreted the Indian country statute; (2) the court overstepped Supreme Court precedent set out in Venetie and misread subsequent case law; and (3) the court undermined the historic approach and current federal policy governing jurisdiction in Indian country. The court s reasoning also proceeds from three flawed assumptions: that Indian country can expand uncontrollably; that the Watchman test was outcome determinative; and that a titledeterminative approach to dependent Indian communities will advance the goal of administrative expedience. First, by tying dependent Indian community status to land title, the HRI III court misinterprets the Indian country statute by reading the term community out of the statute. Sections 1151(a) (Indian reservations) and 1151(c) (Indian allotments) of the Indian county statutes pecifically reference land title, however, 1151(b) (dependent Indian communities) does not. 121 This difference demonstrates that Congress understood the importance of land title and intentionally 119. HRI III, 608 F.3d at 1169. 120. Id. at 1173 n.3 (Ebel, J., dissenting). See Judith V. Royster, Decontextualizing Federal Indian Law: The Supreme Court s 1997-998 Term, 34 TULSA L.J. 329, 342 43 (1999) (concluding that Venetie all-but require[s] trust status for lands to be considered a dependent Indian community ). 121. 28 U.S.C. 1151 ( [t]he term Indian country,... means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including the rights-ofway running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-ofway running through the same. ).